48 F3d 1233 Weis Berg v. T D B

Wm. Talmage WEIS, Plaintiff-Appellant,
Philip BERG, Dwight Hughes, Immanuel Foundation, And
Fraternity of preparation, Plaintiffs,
Rondo T. Frarer, Jerold D. Roberts, and Paul B. Barton,
Individuals, Defendants-Appellees.
Talmage Weis, Plaintiff-Appellant,
and Immanuel Foundation, Fraternity of preparation, and
Phillip Berg, Plaintiffs,
Gary Sullivan, Chad W. Johnson, Ross Marshall, Leo Kanell,
Bryan Sherwood, and Howard Pryor, as Individuals,

Nos. 94-4214, 94-4215.
(D.C. No. 94-CV-496-S)
(D.C. No. 94-CV-151-S)

United States Court of Appeals,
Tenth Circuit.

March 7, 1995.

48 F.3d 1233
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.


Before MOORE, BARRETT, and EBEL, Circuit Judges.

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After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of these appeals. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.


Although these cases are filed separately, they relate to the same operative facts and their dispositions were similar. We join them here for the sake of judicial economy.



This is an appeal from an order dismissing a pro se civil rights complaint. While the district court's reasoning is unclear,2 defendants' memorandum in support of their motion to dismiss contends the district court was without jurisdiction. Asserting the action was to enjoin state imposed taxes, defendants argued the Tax Injunction Act, 28 U.S.C. 1341, barred recovery. We assume, because of the district court's unspecific order, it was upon this ground dismissal was granted.



This action is virtually the same, but it was brought in the name of the "Immanuel Foundation" and the "Fraternity of Preparation" as well as two named plaintiffs and "John and Jane Does, 1-100." Like the companion case, it too is a pro se civil rights action. It was dismissed with an identical order, but in this case, the record contains a report and recommendation of a magistrate judge suggesting dismissal on the grounds the action is barred by the Tax Injunction Act.3 Again, the district court's order of dismissal is not clear, but we assume it was predicated upon either the magistrate's recommendation or defendants' assertion of lack of jurisdiction.


Albeit the pleadings of the plaintiffs are a mishmash of convoluted legalisms and rhetorical conclusions, it is at least clear from the faces of the complaints the relief they apparently sought in the district court had little, if anything, to do with enjoining the collection of a tax. Their essential contention was that plaintiffs are entitled to a religious immunity from taxation, and the defendants, acting as individuals, conspired to deny plaintiffs' rights protected under the United States Constitution by attempting to enforce collection of that tax. At least that is what we glean from the complaints plaintiffs have filed.


Moreover, those complaints clearly seek relief from the defendants as individuals, and as a basis, cite 42 U.S.C.1983, 1985(3), and 1986. The claims for relief in each of the complaints also seek "declaratory judgments" of varied forms, but they nonetheless clearly demand monetary judgments against the defendants as well as a determination of constitutional issues.


It may well be at bottom plaintiffs are seeking to rid themselves from the burdens of state taxes. It is also a strong possibility their own unwillingness to accept the avenues available to them under the laws of Utah have put them in their current predicament. For various reasons their federal action may be doomed. Indeed, we venture no opinion whatever on their ultimate validity. Yet, on the record before us, dismissing the complaints on the basis of the Tax Injunction Act is unwarranted.

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While we do not take issue with the district court's unwillingness to enjoin the collection of state taxes, we do not agree with the disposition of the cases. Although the court's analysis of its jurisdiction to enjoin state taxes is sound, the court nonetheless certainly has subject matter jurisdiction over the civil rights claims of the plaintiffs.


In these appeals, plaintiffs contend these claims should be dealt with on their own merits, and they are right. We remand these cases with instructions to the district court to sort out the various claims and deal with them as circumstances warrant.




This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470


The order of dismissal simply states: "The court having considered defendants' motion to dismiss and based upon the reasons outlined in defendants' supporting pleadings, defendants' motion to dismiss is GRANTED."


The report and recommendation is rather lengthy and touches upon many subjects, but concludes, "[s]ince this court lacks jurisdiction to entertain plaintiffs' claims, the complaint should be dismissed."